• Are Attorney's Fees Recoverable in an ERISA Disability Denial Case?

Can I recover attorney fees if my long-term disability claim is governed by ERISA?

We regularly receive this question from disability claimants. The answer is YES, attorney fees are recoverable in ERISA long-term disability claims, but they are not guaranteed and the award is discretionary with the judge. The statute that gives courts the discretion to award attorney fees is 29 USC 1132 (g)(1) and it states in pertinent part, “In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” Disability carriers will always challenge an award of attorney fees.

The United States Supreme Court in the case of Hardt v. Reliance Standard has stated the following circumstances under which a court may award attorney’s fees:

a claimant must show some degree of success on the merits before a court may award attorney’s fees under § 1132(g)(1). A claimant does not satisfy that requirement by achieving trivial success on the merits or a purely procedural victory, but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquiry into the question whether a particular party’s success was ‘substantial’ or occurred on a central issue.

In addition to the above criteria a district court may also consider the following five factors in deciding whether to award attorney fees:

  1. the degree of opposing parties’ culpability or bad faith;
  2. the ability of opposing parties to satisfy an award of attorney’s fees;
  3. whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances;
  4. whether the parties requesting attorney’s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself;
  5. the relative merits of the parties’ positions.

The following legal cases around the country discuss the established five factor test, Quesinberry v. Life Ins. Co. of N. America, 987 F.2d 1017, 1028-29 (4th Cir. 1993) (en banc), and other courts of appeals have used this test to determine whether to award fees. See Eddy v. Colonial Life Ins. Co. of America, 59 F.3d 201, 206-07 (D.C. Cir. 1995); Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 257-258 (1st Cir. 1986) (citing cases from Second, Third, Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits adopting test); Sec. of Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985). The Seventh Circuit has used two tests, including the five-factor test, to determine whether fee awards in ERISA actions are justified. Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 592-93 (7th Cir. 2000) (describing five-factor test and “substantially justified” test). The Seventh Circuit does not consider the two tests to be meaningfully different. See id.

Comments (8)

  • Jan, you cannot take legal action against the LTD insurer to cover the costs of your legal fees.

    Jay Symonds Jan 18, 2019  #8

  • I currently receive LTD benefits. In 2008 I hired a LTD attorney to appeal the first denial. Then January 2009 benefits stopped for an entire year. My attorney got my benefits restored in late 2009. The attorney gets 1/3 of my benefits every month. This is an ERISA claim. Can I take legal action against the LTD insurer to pay for my legal fees? I should receive the full benefit.

    Jan Jan 17, 2019  #7

  • Paul, you will need to discuss your questions with an account or tax professional to determine what you can do with respect to deductions.

    Stephen Jessup Jan 17, 2018  #6

  • I’m preparing my documents to file my 2017 return. My LTDI Attorney was able to get MetLife to recover backpay and restore my monthly payments. Can I deduct a percentage of attorney fees paid to litigate and recover 28 Months backpay owed and litigation to restore long term disability insurance payments?

    Paul D. Jan 16, 2018  #5

  • Kevin, no. There is no entitlement to attorney fees if you prevail at the administrative appeal level.

    Stephen Jessup May 5, 2017  #4

  • If my claim is covered by ERISA and I win an administrative appeal can I recover attorney fees?

    Kevin H. May 2, 2017  #3

  • KGT,
    An ERISA claimant never goes to court for an APPEAL as an appeal is a letter with supporting documents which is submitted directly to the insurance company. In 99% of the ERISA lawsuits a claimant also never has to court as the Judge will not allow testimony from the claimant.

    Gregory Dell Jan 2, 2013  #2

  • If a claimant has to go to court for an ERISA appeal do they “literally” have to sit in the courtroom? How can a disabled person sit in on a lengthy courtroom battle? Thank you.

    KGT Dec 31, 2012  #1

Leave a comment or ask us a question

Questions About Hiring Us

Do you work in my state?

Yes. We are a national disability insurance law firm that is available to represent you regardless of where you live in the United States. We have partner lawyers in every state and we have filed lawsuits in most federal courts nationwide. Our disability lawyers represent disability claimants at all stages of a claim for disability insurance benefits. There is nothing that our lawyers have not seen in the disability insurance world.

What are your fees?

Since we represent disability insurance claimants at different stages of a disability insurance claim we offer a variety of different fee options. We understand that claimants living on disability insurance benefits have a limited source of income; therefore we always try to work with the claimant to make our attorney fees as affordable as possible.

The three available fee options are a contingency fee agreement (no attorney fee or cost unless we make a recovery), hourly fee or fixed flat rate.

In every case we provide each client with a written fee agreement detailing the terms and conditions. We always offer a free initial phone consultation and we appreciate the opportunity to work with you in obtaining payment of your disability insurance benefits.

Do I have to come to your office to work with your law firm?

No. For purposes of efficiency and to reduce expenses for our clients we have found that 99% of our clients prefer to communicate via telephone, e-mail, fax, GoToMeeting.com sessions, or Skype. If you prefer an initial in-person meeting please let us know. A disability company will never require you to come to their office and similarly we are set up so that we handle your entire claim without the need for you to come to our office.

How can I contact you?

When you call us during normal business hours you will immediately speak with a disability attorney. We can be reached at 800-682-8331 or by email. Lawyer and staff must return all client calls same day. Client emails are usually replied to within the same business day and seem to be the preferred and most efficient method of communication for most clients.

Dell & Schaefer Client Reviews   *****

Jeff F.

Dell & Schaefer has been great to work with and very responsive to my needs. After I was diagnosed with an incurable chronic health disorder (Meniere’s Disease) which rendered me unable to work, I had applied for long term disability after working with the same company for 36 years. The insurance carrier was great to work with until my short term disability had expired. After over a month without any income, no communication; except to contact me to question me about my job performance, I started to pressure them to take action on my long term disability application.

They told me that it would be another month before they could get back to me. At this point I felt the situation was hopeless. I contacted Dell & Schaefer, they immediately responded and quickly contacted the insurance carrier via letter. Two weeks later I was approved. I have had excellent experience with the firm. They keep me informed and always respond in a timely manner. They are proactive and provide great support when I need to respond to any requests from my insurance carrier.

***** 5 stars based on 202 reviews

Speak With An Attorney Now

Request a free legal consultation: Call 800-682-8331 or Email Us